Y\e\re> ...  o^iVxe.  \c\Ye.  Si'ephe'rv  ^OT\rc\YcA. 


Ur 


THE  DECISION 


OF  THE 

SUPREME  COURT  OF  PETVNSYJLYANBA, 

IN  THE  EJECTMENTS 


BROUGHT  BY 


THE  HEIRS  AT  LAW 


OF 


THE  EATE  STEPHEW  GIRARD 


AGAINST 

“THE  MAYOR,  ALDERMEN,  AND  CITIZENS  OP  PHILADELPHIA,** 


STATED  AND  CONSIDERED. 


Philadelphia,  September,  1833. 


PHILADELPHIA : 
PRINTED  BY  LYDIA  R.  BAILEY, 

NO.  26  NORTH  FIFTH  STREET. 


Digitized  by  the  Internet  Archive  - 
in  2016  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


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! 


DECISION-,  &c. 


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V 

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A 

c 2 


& 


Stephen  Girard,  of  the  city  of  Philadelphia,  in  the  com- 
monwealth of  Pennsylvania,  mariner  and  merchant,  died  on 
the  26th  December,  1831,  unmarried  and  without  issue,  hav- 
ing made  his  will,  dated  the  16th  February  1830,  and  two 
codicils  thereto,  dated  the  25th  December  1830,  and  the  20th 
June  1831. 

By  his  said  Will,  he  gave  to  his  heirs  at  law,  and  to  different 
members  of  their  families,  certain  real  and  personal  estate,  as 
will  appear  by  the  following  clauses  of  that  instrument: — 

“ IX.  I give  and  devise  my  house  and  lot  of  ground  thereto 
belonging,  situate  in  rue  Ramouet  aux  Chartrons,  near  the  city 
of  Bordeaux,  in  France,  and  the  rents,  issues,  and  profits 
thereof,  to  my  brother,  Etienne  Girard,  and  my  niece  Victoire 
Fenellon,  (daughter  of  my  late  sister  Sophia  Girard  Capayron,) 
(both  residing  in  France,)  in  equal  moieties  for  the  life  of  my 
said  brother,  and,  on  his  decease,  one  moiety  of  the  said  house 
and  lot  to  my  said  niece  Victoire,  and  her  heirs  forever,  and 
the  other  moiety  to  the  six  children  of  my  said  brother,  name- 
ly, John  Fabricius,  Marguerite,  Ann  Henriette,  Jean  August, 
Marie,  and  Madelaine  Henriette,  share  and  share  alike,  (the 
issue  of  any  deceased  child,  if  more  than  one,  to  take  amongst 
them  the  parent’s  share)  and  their  heirs  forever. 

“ X.  I give  and  bequeath  to  my  said  brother,  Etienne  Gi- 
rard, the  sum  of  Five  Thousand  Dollars , and  the  like  sum 
of  Five  Thousand  Dollars  to  each  of  his  six  children  above 
named : if  any  of  the  said  children  shall  die  prior  to  the  re- 
ceipt of  his  or  her  legacy  of  five  thousand  dollars,  the  said  sum 


( 4 ) 

shall  be  paid,  and  I give  and  bequeath  the  same  to  any  issue  of 
such  deceased  child,  if  more  than  one,  share  and  share  alike. 

“ XI.  I give  and  bequeath  to  my  said  niece,  Victoire  Fenel- 
lon,  the  sum  of  Five  Thousand  Dollars. 

“ XII.  I give  and  bequeath  absolutely  to  my  niece,  Antoinet- 
ta,  now  married  to  Mr.  Hemphill,  the  sum  of  Ten  Thousand 
Dollars , and  I also  give  and  bequeath  to  her  the  sum  of  Fifty 
Thousand  Dollars , to  be  paid  over  to  a trustee  or  trustees  to 
be  appointed  by  my  executors,  which  trustee  or  trustees  shall 
place  and  continue  the  said  sum  of  fifty  thousand  dollars  upon 
good  security,  and  pay  the  interest  and  dividends  thereof  as 
they  shall  from  time  to  time  accrue,  to  my  said  niece  for  her 
separate  use,  during  the  term  of  her  life,  and  from  and  imme- 
diately after  her  decease,  to  pay  and  distribute  the  capital  to 
and  among  such  of  her  children  and  the  issue  of  deceased  chil- 
dren,  and  in  such  parts  and  shares  as  she  the  said  Antoinetta, 
by  any  instrument  under  her  hand  and  seal,  executed  in  the 
presence  of  at  least  two  credible  witnesses,  shall  direct  and  ap- 
point, and  for  default  of  such  appointment,  then  to  and  among 
the  said  children  and  issue  of  deceased  children  in  equal  shares, 
such  issue  of  deceased  children,  if  more  than  one,  to  take  only 
the  share  which  their  deceased  parent  would  have  taken  if 
living. 

“ XIII.  I give  and  bequeath  unto  my  niece,  Carolina,  now 
married  to  Mr.  Haslam,  the  sum  of  Ten  Thousand  Dollars , 
to  be  paid  over  to  a trustee  or  trustees  to  be  appointed  by  my 
executors,  which  trustee  or  trustees  shall  place  and  continue 
the  said  money  upon  good  security,  and  pay  the  interest  and 
dividends  thereof  from  time  to  time  as  they  shall  accrue,  to 
my  said  niece,  for  her  separate  use,  during  the  term  of  her 
life ; and  from  and  immediately  after  her  decease,  to  pay  and 
distribute  the  capital  to  and  among  such  of  her  children  and 
issue  of  deceased  children,  and  in  such  parts  and  shares,  as  she 
the  said  Carolina,  by  any  instrument  under  her  hand  and  seal, 
executed  in  the  presence  of  at  least  two  credible  witnesses,  shall 
direct  and  appoint,  and  for  default  of  such  appointment,  then 
to  and  among  the  said  children,  and  issue  of  deceased  children, 


( 5 ) 

in  equal  shares,  such  issue  of  deceased  children,  if  more  than 
one,  to  take  only  the  share  which  the  deceased  parent  would 
have  taken  if  living ; but  if  my  said  niece,  Carolina,  shall  leave 
no  issue,  then  the  said  trustee  or  trustees,  on  her  decease,  shall 
pay  the  said  capital  and  any  interest  accrued  thereon,  to  and 
among  Caroline  Lallemand,  (niece  of  the  said  Carolina,)  and 
the  children  of  the  aforesaid  Antoinetta  Hemphill,  share  and 
share  alike. 

“ XIV.  I give  and  bequeath  to  my  niece  Henrietta,  now 
married  to  Dr.  Clark,  the  sum  of  Ten  Thousand  Dollars; 
and  I give  and  bequeath  to  her  daughter  Caroline,  (in  the  last 
clause  above  named,)  the  sum  of  Twenty  Thousand  Dollars 
— the  interest  of  the  said  sum  of  twenty  thousand  dollars,  or 
so  much  thereof  as  may  be  necessary,  to  be  applied  to  the 
maintenance  and  education  of  the  said  Caroline  during  her  mi- 
nority, and  the  principal  with  any  accumulated  interest,  to  be 
paid  to  the  said  Caroline,  on  her  arrival  at  the  age  of  twenty- 
one  years.” 

And  he  also  bequeathed  to  the  Commonwealth  of  Pennsyl- 
vania, the  sum  of  three  hundred  thousand  dollars,  in  the  fol- 
lowing manner : 

“ XXIII.  I give  and  bequeath  to  the  Commonwealth  of 
Pennsylvania,  the  sum  of  Three  Hundred  Thousand  Dollars , 
for  the  purpose  of  internal  improvement  by  canal  navigation, 
to  be  paid  into  the  State  treasury  by  my  executors,  as  soon  as 
such  laws  shall  have  been  enacted  by  the  constituted  authori- 
ties of  the  said  Commonwealth  as  shall  be  necessary  and  amply 
sufficient  to  carry  into  effect,  or  to  enable  the  constituted  au- 
thorities of  the  city  of  Philadelphia  to  carry  into  effect  the 
several  improvements  above  specified;  namely,  1.  Laws , to 
cause  Delaware  Avenue,  as  above  described,  to  be  made, 
paved,  curbed,  and  lighted ; to  cause  the  buildings,  fences,  and 
other  obstructions  now  existing,  to  be  abated  and  removed ; 
and  to  prohibit  the  erection  of  any  such  obstructions  to  the 
eastward  of  said  Delaware  Avenue;  2.  Laws , to  cause  all 


( 6 ) 

wooden  buildings  as  above  described  to  be  removed,  and  to 
prohibit  their  future  erection  within  the  limits  of  the  city  of 
Philadelphia;  3.  Laws , providing  for  the  gradual  widening, 
regulating,  paving,  and  curbing  Water  street,  as  herein  before 
described,  and  also  for  the  repairing  the  middle  alleys,  and  in- 
troducing the  Schuylkill  water,  and  pumps,  as  before  specified 
— all  which  objects  may,  I persuade  myself,  be  accomplished 
on  principles  at  once  just  in  relation  to  individuals,  and  highly 
beneficial  to  the  public : the  said  sum,  however,  not  to  be  paid, 
unless  said  laws  be  passed  within  one  year  after  my  decease.” 

The  Testator  then  gave  the  residue  of  his  immense  estate  to 
“the  Mayor,  Aldermen  and  Citizens  of  Philadelphia,”  in  the 
manner  set  forth  in  the  following  clause  of  his  Will — 

“ XX.  And  whereas,  I have  been  for  a long  time  impressed 
with  the  importance  of  educating  the  poor,  and  of  placing  them 
by  the  early  cultivation  of  their  minds  and  the  developement 
of  their  moral  principles  above  the  many  temptations,  to  which, 
through  poverty  and  ignorance  they  are  exposed ; and  I am 
particularly  desirous  to  provide  for  such  a number  of  poor 
male  white  orphan  children,  as  can  be  trained  in  one  institu- 
tion, a better  education,  as  well  as  a more  comfortable  main- 
tenance than  they  usually  receive  from  the  application  of  the 
public  funds:  And  whereas,  together  with  the  object  just  ad- 
verted to,  I have  sincerely  at  heart  the  welfare  of  the  city  of 
Philadelphia,  and,  as  a part  of  it,  am  desirous  to  improve  the 
neighbourhood  of  the  river  Delaware,  so  that  the  health  of  the 
citizens  may  be  promoted  and  preserved,  and  that  the  eastern 
part  of  the  city  may  be  made  to  correspond  better  with  the  in- 
terior: Now,  I do  give,  devise,  and  bequeath  all  the  residue 
and  remainder  of  my  Real  and  Personal  Estate  of  every  sort 
and  kind  wheresoever  situate,  (the  real  estate  in  Pennsylvania 
charged  as  aforesaid)  unto  ‘ the  Mayor,  Aldermen  and  Citi- 
zens of  Philadelphia,’  their  successors  and  assigns,  in  trust,  to 
and  for  the  several  uses,  intents,  and  purposes  hereinafter  men- 
tioned and  declared  of  and  concerning  the  same,  that  is  to  say: 


( 7 ) 

So  FAR  AS  REGARDS  MY  REAL  ESTATE  IN  PENNSYLVANIA,  IN 
TRUST,  THAT  NO  PART  THEREOF  SHALL  EVER  BE  SOLD  OR  ALIE- 
NATED BY  THE  SAID  THE  MAYOR,  AlDERMEN  AND  ClTIZENS 

of  Philadelphia,  or  their  successors,  but  the  same  shall 
for  ever  thereafter  be  let  from  time  to  time,  to  good  tenants, 
at  yearly,  or  other  rents,  and  upon  leases  in  possession  not  ex- 
ceeding five  years  from  the  commencement  thereof,  and  that 
the  rents,  issues,  and  profits  arising  therefrom  shall  be  applied 
towards  keeping  that  part  of  the  said  real  estate  situate  in  the 
city  and  liberties  of  Philadelphia  constantly  in  good  repair, 
(parts  elsewhere  situate  to  be  kept  in  repair  by  the  tenants 
thereof  respectively)  and  towards  improving  the  same,  when- 
ever necessary,  by  erecting  new  buildings,  and  that  the  nett 
residue  (after  paying  the  several  annuities  herein  before  pro- 
vided for)  be  applied  to  the  same  uses  and  purposes  as  are  here- 
in declared  of  and  concerning  the  residue  of  my  personal  es- 
tate : And  so  far  as  regards  my  real  estate  in  Kentucky,  now 
under  the  care  of  Messrs.  Triplett  and  Burmley,  in  trust,  to 
sell  and  dispose  of  the  same,  whenever  it  may  be  expedient  to 
do  so,  and  to  apply  the  proceeds  of  such  sale  to  the  same  uses 
and  purposes  as  are  herein  declared  of  and  concerning  the  re- 
sidue of  my  personal  estate.  ” 

After  pointing  out  with  great  distinctness  the  purposes  for 
which  he  gives  the  residue  of  his  estate  to  “the  Mayor, 
Aldermen  and  Citizens  of  Philadelphia,”  the  Testator  proceeds 
in  the  following  emphatic  language  to  declare  the  conditions 
upon  which  the  said  property  is  to  be  retained  by  them : 

“ To  all  which  objects,  the  prosperity  of  the  city,  and  the 
health  and  comfort  of  its  inhabitants,  I devote  the  said  fund  as 
aforesaid,  and  direct  the  income  thereof  to  be  applied  yearly 
and  every  year  forever,  alter  providing  for  the  College  as  here- 
inbefore directed,  as  my  primary  object.  But,  if  the  said  city 
shall  knowingly  and  wilfully  violate  any  of  the  conditions  here- 
inbefore and  hereinafter  mentioned,  then  I give  and  bequeath 
the  said  remainder  and  accumulations  to  the  Commonwealth  of 


( 8 ) 

Pennsylvania,  for  the  purposes  of  internal  navigation  ; except- 
ing, however,  the  rents,  issues,  and  profits  of  my  real  estate 
in  the  city  and  county  of  Philadelphia,  which  shall  forever 
be  reserved  and  applied  to  maintain  the  aforesaid  College,  in 
the  manner  specified  in  the  last  paragraph  of  the  XXIst  clause 
of  this  Will : And  if  the  Commonwealth  of  Pennsylvania  shall 
fail  to  apply  this  or  the  preceding  bequest  to  the  purposes  be- 
forementioned,  or  shall  apply  any  part  thereof  to  any  other  use, 
or  shall,  for  the  term  of  one  year,  from  the  time  of  my  decease, 
fail  or  omit  to  pass  the  laws  hereinbefore  specified  for  promot- 
ing the  improvement  of  the  City  of  Philadelphia,  then  I give, 
devise,  and  bequeath  the  said  remainder  and  accumulations 
(the  rents  aforesaid  always  excepted  and  reserved  for  the  Col- 
lege as  aforesaid)  to  the  United  States  of  America,  for  the  pur- 
poses of  internal  navigation,  and  no  other. 

“ Provided,  nevertheless,  and  I do  hereby  declare,  that  all 
the  preceding  bequests  and  devises  of  the  residue  of  my  estate 
to  the  Mayor,  Aldermen,  and  Citizens  of  Philadelphia,  are 
made  upon  the  following  express  conditions,  that  is  to  say : — 
First , That  none  of  the  monies,  principal,  interest,  dividends, 
or  rents,  arising  from  the  said  residuary  devise  and  bequest, 
shall  at  any  time  be  applied  to  any  other  purpose  or  purposes 
whatever,  than  those  herein  mentioned  and  appointed.” 

The  following  are  the  two  codicils  made  by  the  testator. 

“ Whereas,  I,  Stephen  Girard,  the  Testator  named  in  the 
foregoing  Will  and  Testament,  dated  the  sixteenth  day  of 
February,  eighteen  hundred  and  thirty,  have,  since  the  execu- 
tion thereof,  purchased  several  parcels  and  pieces  of  real  estate, 
and  have  built  sundry  Messuages,  all  which,  as  well  as  any 
real  estate  that  I may  hereafter  purchase,  it  is  my  wish  and 
intention  to  pass  by  the  said  Will : Now,  I do  hereby  repub- 
lish the  foregoing  last  Will  and  Testament,  dated  February 
16,  1830,  and  do  confirm  the  same  in  all  particulars:  In  wit- 
ness, I,  the  said  Stephen  Girard,  set  my  hand  and  seal  here- 


( 9 ) 

unto,  the  twenty-fifth  day  of  December,  eighteen  hundred  and 
thirty. 

STEPHEN  GIRARD.  [Seal.] 

“ Signed,  sealed,  published,  and  declared' 
by  the  said  Stephen  Girard,  as  and 
for  a republication  of  his  last  Will 
and  Testament,  in  the  presence  of 
us,  who,  at  his  request,  have  hereun-  > 
to  subscribed  our  names  as  witnesses 
thereto  in  the  presence  of  the  said 
Testator  and  of  each  other,  Decem- 
ber 25th,  1830. 

JOHN  H.  IRVIN, 

SAMUEL  ARTHUR, 

JNO.  THOMSON. 

“ Whereas,  I,  Stephen  Girard,  the  Testator  named  in  the 
foregoing  Will  and  Testament,  dated  February  16,  1830,  have, 
since  the  execution  thereof,  purchased  several  parcels  and 
pieces  of  land  and  real  estate,  and  have  built  sundry  Messuages, 
all  which,  as  well  as  any  real  estate  that  I may  hereafter  pur- 
chase, it  is  my  intention  to  pass  by  said  Will  : And  whereas 
in  particular,  I have  recently  purchased  from  Mr.  William 
Parker,  the  Mansion  House,  out-buildings,  and  forty-five 
acres  and  some  perches  of  land,  called  Peel  Hall,  on  the 
Ridge  Road,  in  Penn  Township  : Now,  I declare  it  to  be  my 
intention,  and  I direct,  that  the  Orphan  establishment,  pro- 
vided for  in  my  said  Will,  instead  of  being  built  as  therein 
directed  upon  my  square  of  ground  between  High  and  Ches- 
nut  and  Eleventh  and  Twelfth  Streets  in  the  City  of  Phila- 
delphia, shall  be  built  upon  the  estate  so  purchased  from  Mr. 
W.  Parker,  and  I hereby  devote  the  said  estate  to  that  pur- 
pose, exclusively,  in  the  same  manner  as  I had  devoted  the 
said  square,  hereby  directing  that  all  the  improvements  and 
arrangements  for  the  said  Orphan  establishment  prescribed  by 
my  said  Will  as  to  said  square  shall  be  made  and  executed 
upon  the  said  estate,  just  as  if  I had  in  my  Will  devoted  the 


B 


( 10  ) 

said  estate  to  said  purpose — consequently,  the  said  square  of 
ground  is  to  constitute,  and  I declare  it  to  be  a part  of  the  re- 
sidue and  remainder  of  my  real  and  personal  estate,  and  given 
and  devised  for  the  same  uses  and  purposes  as  are  declared  in 
section  twenty,  of  my  Will,  it  being  my  intention  that  the  said 
square  of  ground  shall  be  built  upon  and  improved  in  such  a 
manner  as  to  secure  a safe  and  permanent  income  for  the  pur- 
poses stated  in  said  twentieth  section.  In  witness  whereof,  I, 
the  said  Stephen  Girard,  set  my  hand  and  seal  hereunto,  the 
twentieth  day  of  June,  eighteen  hundred  and  thirty  one. 

STEPHEN  GIRARD.  [ Seal .] 

“Signed,  sealed,  published,  and  declared, ' 
by  the  said  Stephen  Girard,  as  and  for 
a republication  of  his  last  Will  and 
Testament,  and  a further  direction  in 
relation  to  the  real  estate  therein 
mentioned,  in  the  presence  of  us,  > 
who,  at  his  request,  have  hereunto 
subscribed  our  names  as  witnesses 
thereto,  in  the  presence  of  the  said 
Testator,  and  of  each  other,  June  20, 

1831. 

S.  H.  CARPENTER, 

L.  BARDIN, 

SAMUEL  ARTHUR.” 


On  the  31st  December,  1831,  the  will  and  codicils  were 
duly  proved  before  the  Register  of  Wills  for  the  City  and 
County  of  Philadelphia,  and  on  the  same  day  Letters  Testa- 
mentary were  granted  to  the  Executors. 

The  following  real  estate  was  purchased  by  the  Testator 
subsequently  to  the  date  of  his  will  and  codicils: 

“ Schedule  of  the  Real  Estate  of  Stephen  Girard , purchased 
subsequent  to  the  20th  of  June , 1831. 

1831. 

Oct.  5,  Two  houses  and  lots  on  Walnut  Street,  be- 
tween Second  and  Dock  streets,  Nos.  63 


C 11  ) 

and  65,  and  one  house  and  lot  on  Dock 
street,  No.  61,  $10,666  67 

Oct.  2 7,  A lot  of  land  in  Passyunk  township,  con- 
taining 60  acres  and  87  perches,  per  deed 
of  this  date,  - 6,659  81 

27,  A ground  rent  of  $25  T6^.  per  annum,  pay- 
able by  Philip  Smith,  out  of  a lot  of 
ground  in  Spruce  street,  between  Third 
and  Fourth  streets.  Due  25th  of  March 
and  September  in  every  year,  per  deed 
of  this  date,  - 569  74 

27,  A house  and  lot  on  the  north  side  of  Coates 
street,  west  of  Sixth  street,  per  deed  of 
this  date,  -----  3,000  00 

Nov.  2,  A lot  of  ground  on  the  north-east  corner  of 
Coates  and  John  streets,  per  deed  of  this 

date, 1,800  00 

4,  A house  and  lot  in  South  Third  street,  No. 

48,  per  deed  of  this  date,  - - 12,000  00 

Dec.  1,  A messuage  and  lot  of  ground  in  Passyunk 
township,  having  a front  on  Schuylkill, 
per  deed  of  this  date,  - 3,000  00 

21,  Stores,  wharf,  and  dock,  in  North  Water 
street,  between  Market  and  Arch  streets, 
late  Stiles’s  estate,  deed  dated  this  day, 
taken  subject  to  a mortgage  for  $21,000. 

Residue  paid,  - 24,222  33 

26,  A lot  of  ground  in  Schuylkill  county,  near 
Mount  Carbon,  on  the  river  Schuylkill, 
intended  for  landings,  per  deed  dated  — 
inst.  ------  4,500  00 

$66,418  55” 


The  Executors  paid  the  different  heirs  at  law  their  respec- 
tive legacies  as  follows,  deducting  the  collateral  inheritance 
tax. 


( 12  ) 


« 1832. 

July  5,  Legacy  to  Mad.  Vedal,  formerly  V.  Fe- 
nellon,  deducting  collateral  inheritance 
tax,  - $ 4,875  00 

6,  Legacy  to  Mrs.  Henrietta  Clark,  do.  9,750  00 

7,  Legacy  to  Mrs.  Maria  Hemphill,  do.  9,750  00 

Aug.  21,  Legacy  to  trustees  of  Mrs.  M.  A. 

Hemphill,  - do.  48,750  00 

Sept.  1,  Legacy  to  trustees  of  Mrs.  Haslam,  do.  9,750  00 

1833. 

Jan.  2,  By  this  sum  paid  John  F.  Girard,  attor- 
ney in  fact,  the  following  legacies,  viz. 

Etienne  Girard,  - - $5,000  00 

Less  collateral  inherit,  tax,  125  00 

$4,875  00” 


The  legacies  given  to  the  children  of  some  of  the  heirs  at 
law  were  also  paid,  amounting  to  - - - $45,000  00 

And  on  the  19th  April,  1832,  the  legacy  of  $300,000,  given 
to  the  Commonwealth  of  Pennsylvania,  was  paid  to  the  state 
treasurer. 

The  following  amicable  actions  of  ejectment  were  entered 
in  the  Supreme  Court  of  Pennsylvania,  for  the  Eastern  Dis- 
trict, on  the  8th  and  13th  October,  1833. 


Louis  Vidal  and  Frangoise  Fenellon  his  wife, " 
vs.  I 

The  Mayor,  Aldermen,  and  Citizens  of  Phila- 
delphia, 


July,  1832. 
No.  44. 


John  Hemphill  and  Antoinetta  his  wife,  John"] 

Y.  Clark  and  Henrietta  his  wife,  and  John  j 
B.  Haslam  and  Carolina  his  wife,  }>  No.  45. 

vs. 

Same. 

Etienne  Girard, 
vs. 

Same. 


No.  46. 


( 13  ) 

The  following  is  a copy  of  the  agreements  under  which  they 
were  entered,  and  also  of  the  cases  stated  for  the  opinion  of 
the  Court. 

Amicable  Action  in  Ejectment,  for  the  following  described 
Real  Estate: 

Two  houses  and  lots  on  Walnut  street,  between  Second  and 
Dock  streets,  Nos.  63  and  65,  and  one  house  and  lot  on  Dock 
street,  No.  61,  purchased  October  5,  1831,  by  the  late  Stephen 
Girard. 

A lot  of  land  in  Passyunk  township,  containing  60  acres  and 
87  perches,  purchased  by  the  same,  October  27th,  1831. 

A house  and  lot  on  the  north  side  of  Coates  street,  west  of 
Sixth  street,  purchased  by  the  same,  October  27th,  1831. 

A lot  of  ground  on  the  north-east  corner  of  Coates  and  John 
streets,  purchased  by  the  same,  November  2,  1831. 

A house  and  lot  in  South  Third  street,  No.  48,  purchased 
by  the  same,  November  4,  1831. 

A messuage  and  lot  of  ground  in  Passyunk  township,  hav- 
ing a front  on  Schuylkill,  purchased  by  the  same,  December  1, 
1831. 

Stores,  wharf,  and  dock  in  North  Water  street,  between 
Market  and  Arch  streets,  late  Stiles’s  estate,  purchased  by  the 
same,  December  21,  1831. 

It  is  agreed  that  the  above  action  be  entered  to  the  above  term, 
as  if  a Summons  in  Ejectment  had  been  regularly  issued  and 
returned  served,  and  that  the  description  of  the  property, 
and  the  dates  at  which  Stephen  Girard  acquired  the  same, 
may  be  altered  and  amended  according  to  the  deeds. 

Case  stated  for  the  opinion  of  the  Court , as  upon  a special 

verdict. 

Stephen  Girard,  Esquire,  late  of  the  City  of  Philadelphia, 
Banker,  died  on  the  26th  day  of  December,  1831 — seised  in  fee 


( 14  ) 

of  all  and  singular  the  Real  Estate  set  forth  in  the  agreement  to' 
enter  the  above  action,  purchased  by  him  at  the  dates  mentioned 
in  the  said  agreement — having  first  made  and  executed  his  last 
will  and  testament,  dated  the  16th  day  of  February,  1830,  and 
codicils  thereto,  dated  respectively  on  the  25th  day  of  Decem- 
ber, 1830,  and  the  20th  day  of  June,  1831,  duly  proved  in  the 
Register’s  Office  for  the  City  and  County  of  Philadelphia,  on 
the  31st  day  of  December,  1831,  [prout  will  and  codicils  which 
are  to  be  considered  as  part  of  this  case]  and  leaving  at  the 
time  of  his  death,  the  following  named  heirs  at  law. 

1.  — Etienne  Girard , a brother  of 

the  testator  of  the  whole  blood. 

2.  — Antoinetta  Hemphill , wife  of  John  Hemphill, 

Henrietta  Clark , wife  of  John  Y. 
Clark,  and  Caroline  Haslam , wife  of  John  B.  Haslam; 
the  said  Antoinetta,  Henrietta,  and  Caroline  being  the 
children  of  John  Girard,  deceased,  a brother  of  the  tes- 
tator of  the  whole  blood. 

3.  — Frangoise  Fenellon  Vidal , the  wife  of  Louis  Vidal, 

the  said  Frangoise  Fenellon  being 
the  daughter  of  Sophia  Girard  Capayron,  deceased,  a 
sister  of  the  testator  of  the  whole  blood. 

The  defendants  are  in  possession  of  all  the  said  Real  Estate. 
The  deeds  granting  the  Estate  mentioned  to  the  said  Stephen 
Girard,  are  to  be  considered  as  part  of  this  case. 

If  the  Court  shall  be  of  opinion  that  the  said  Real  Estate,  or 
any  part  thereof,  was  devised  by  and  passed  under  the  said 
will  and  codicils  to  the  defendants,  then  judgment  to  be  en- 
tered for  the  defendants,  for  the  whole  or  such  part  of  the 
said  Estate  as  was  devised  and  passed. — If  the  Court  shall 
be  of  opinion  that  the  said  Real  Estate,  or  any  part  thereof, 
was  not  devised  by  and  did  not  pass  under  the  said  will  and 
codicils,  then  judgment  to  be  entered  for  the  plaintiffs,  for 
one  undivided  third  part  of  the  Real  Estate,  in  the  agree- 


( 15  ) 

men!  mentioned,  or  for  one  undivided  third  part  of  so  much 
thereof  as  was  not  devised  by  the  said  will  and  codicils,  to 
the  defendants. 

The  cases  were  argued,  and 

On  the  29th  March,  1833,  judgments  were  entered  in  favour 
of  the  plaintiffs  in  each  suit,  and  the  following  opinion  of  the 
Court  was  drawn  up  by 

Gibson,  C.  J. — In  the  report  of  the  judges  on  the  statutes, 
nothing  is  said  about  the  32  and  34  Hen.  8.  which  are  therefore 
to  be  taken  as  not  in  force  here  ; but  whether  they  were  con- 
sidered as  having  never  been  so,  or  as  supplanted  by  our  statute 
of  1705,  can  not  be  positively  known.  They  were  most  proba- 
bly thought  to  be  repealed  and  supplied,  as  they  were  entirely 
within  the  rule  laid  down  by  Lord  Holt  in  Blankard  v.  Galdy, 
2 Salk.  411,  and  repeated  by  the  Privy  Council,  as  appears 
from  the  relation  of  the  Master  of  the  Rolls  in  2 P.  Wms.  75; 
that  an  emigrant  colony  carries  with  it  the  laws  of  the  parent 
to  an  uninhabited  country;  or  even  to  one  acquired  by  con- 
quest, so  far  as  regards  matters  in  respect  to  which  the  exist- 
ing laws  are  silent,  or  enjoin  what  is  immoral,  or  are  contrary 
to  the  religion  of  the  conqueror.  It  is  plain  that  a country 
whose  entire  population  has  been  displaced  to  make  room  for 
the  new  comers,  is  an  uninhabited  country  for  the  purpose  of 
receiving  their  laws;  and  it  therefore  seems  singular  that  the 
distinguished  judge  who  ruled  Blankard  v.  Galdy,  should 
shortly  afterwards  have  held,  in  a case  which  involved  the 
legality  of  slavery,  that  the  laws  of  England  did  not  extend 
to  Virginia,  being  a conquered  country;  and  the  more  so  as 
the  laws  of  the  aborigines,  if  they  had  any,  could  not  be  sup- 
posed to  have  provided  for  the  subject.  Be  that  as  it  may,  our 
courts  have  always  held  that  the  laws  which  were  in  force  at 
the  foundation  of  the  colony,  and  not  positively  unsuitable  to 
the  condition  of  the  colonists,  were  brought  by  them  hither  ; 
and  it  can  not  be  thought  that  laws  which  enabled  them  to  dis- 
pose of  real  estate,  were  unsuitable.  During  the  twenty-four 


( 16  ) 

years  that  elapsed  between  the  charter  and  our  statute,  they 
could  not  have  been  without  provision  on  the  subject,  and  I 
know  of  none  that  was  competent  to  satisfy  their  necessities 
but  these  very  statutes;  for  it  will  appear  in  the  sequel,  that 
the  intervening  legislation  on  the  subject  of  wills,  had  regard 
to  the  proof  of  the  instrument  and  not  the  power  of  the  testa- 
tor, with  perhaps  the  single  exception  of  the  act  to  direct  ‘ how 
the  estate  of  any  person  shall  be  disposed  of  at  his  death, ’ 
passed  the  10th  of  March,  1683.  By  that  act,  which  may  be 
seen  in  the  Appendix  to  Hall  and  Sellers’s  edition  of  the  laws, 
page  9,  it  was  provided:  6 That  whatsoever  estate  any  person 
hath  in  this  province  or  territories  thereof,  at  the  time  of  his 
death,  unless  it  appear  that  an  equal  provision  be  made  else- 
where, shall  be  thus  disposed  of ; that  is  to  say,  one-third  to 
the  wife  of  the  party  deceased,  one-third  to  the  children  equal- 
ly, and  the  other  third  as  he  pleaseth  ; and  in  case  his  wife 
be  deceased  before  him,  two-thirds  shall  go  to  the  children 
equally,  and  the  other  third  to  he  disposed  of  as  he  shall 
think  fit,  his  debts  being  first  paid.’  In  the  margin  we  have 
these  observations  by  Chief  Justice  Kinsey:  ‘ 1.  This  act  seems 
to  restrain  the  power  of  devising  more  than  one-third  of  the 
lands  of  which  a man  died  seised.  2.  This  law,  for  aught  I find 
to  the  contrary,  continued  till  the  first  of  the  fourth  month, 
1693,  when  a law  passed  authorizing  a man  to  devise  all  his 
real  estate.’  This  repealing  law  I have  been  unable  to  find. 
But  it  is  observable  that  the  Act  of  1683,  included  land,  if  at 
all,  only  by  force  of  the  word  ‘ estate’  and  not  of  any  more 
specific  term;  so  that  it  is  by  no  means  clear  that  the  inclina- 
tion of  Judge  Kinsey’s  opinion,  for  he  spoke  doubtingly,  ac- 
corded with  the  true  construction  or  actual  understanding  of 
the  times.  He  could  not  have  known  by  experience  the  con- 
struction put  on  the  act  in  practice,  for  his  notes  were  written 
probably  forty  years  after  the  repeal  of  it;  and  if  he  had  been 
a member  of  the  profession  during  that  period,  he  was  not  till 
1730,  an  inhabitant  of  Pennsylvania.  Granting  his  opinion  to 
be  that  land  was  included,  it  is  pretty  evident  the  crown 
thought  otherwise  ; forjudging  from  the  jealousy  evinced  by 


( 17  ) 

it  in  the  case  of  much  less  important  innovations,  it  is  scarce 
to  be  believed,  that  it  would  have  tolerated  for  ten  years  so 
violent  an  infraction  of  the  spirit  of  the  charter  which  required 
a conformity  of  the  laws  to  those  of  the  mother  country,  as  a 
restriction  of  the  power  of  devising  to  a third  of  the  testator’s 
land,  or  the  dower  of  his  widow  to  be  turned  to  a fee.  But  if  it 
were  even  applicable  to  land,  still  it  was  viewed  by  the  Chief 
Justice  but  as  a restraining  statute,  not  an  enabling  one  ; and 
this  plainly  shows  what,  in  his  opinion,  was  the  law  before. 
It  was  therefore  to  remove  a doubt  of  the  interpretation,  or  to 
repeal  the  law  taking  the  interpretation  of  the  Chief  Justice 
to  have  been  established — in  any  event  to  restore  the  law  to 
its  former  footing — that  the  act  of  which  he  speaks,  was  pass- 
ed in  1693.  Of  the  legislation  which  took  place  in  relation  to 
proof  of  the  instrument,  I shall  have  occasion  to  speak  again. 
It  seems  pretty  clear,  then,  that  the  English  statutes  of  wills 
were  originally  in  force  with  us,  and  not  reported  as  being  so 
still,  only  because  the  judges  thought  that  our  own  statute  was 
designed  to  supersede  them  in  their  whole  extent.  Judging  of 
the  substitute  by  its  provisions,  it  might  perhaps  as  easily 
have  been  deemed  but  ancillary  to  them  as  performing  the 
same  office  in  regard  to  them  here,  by  exacting  in  addition  to 
their  requirements  the  observance  of  particular  solemnities  as 
matter  of  proof,  that  is  performed  by  the  statute  of  frauds  in 
England.  But  even  as  an  enabling  statute,  our  act  of  1705 
was  not  a new  law,  but  an  act  of  legislation  on  the  basis  of  an 
old  one,  which  is  therefore  to  be  taken  into  consideration  in 
the  interpretation  of  inexplicit  clauses,  because  it  is  reasonable 
to  presume  that  no  departure  from  the  existing  law  was  in- 
tended further  than  is  expressed.  For  this  reason  it  is,  per- 
haps, that  the  act  has  always  been  understood  by  the  profes- 
sion, in  accordance  with  the  British  statutes.  Had  a variance 
been  suspected,  it  must  long  ago  have  been  put  to  the  test  of 
judicial  decision;  but  no  trace  of  such  suspicion  is  to  be  found 
in  our  judicial  records.  It  is  argued,  that  whatever  the  gene- 
ral rule  may  be,  the  clauses  in  the  codicils  of  this  will  which 
require  real  estate  acquired  subsequently  to  pass  as  if  it  were 


c 


( 18  ) 

then  the  estate  of  the  testator,  make  the  case  an  exception  to 
it;  and  the  question  therefore  is  not  one  of  intention  but  of 
power.  But  even  in  the  case  of  a general  residuary  devise,  the 
intention  to  pass  the  estate  is  taken  for  granted;  and  what  is 
there  in  the  specific  expression  of  such  an  intention  here,  but 
a greater  degree  of  certainty  in  respect  to  what  is  in  other 
cases  taken  for  granted?  Nothing  in  the  books  but  the  dictum 
in  Brett  v.  Rigden,  Plowd.  344,  gives  colour  of  authority  to 
the  supposed  distinction.  There  it  is  said  to  have  been  deter- 
mined in  the  39  H.  6.  18,  that  if  a man  devise  a certain  estate 
and  have  nothing  in  it  at  the  time,  but  purchase  it  afterwards, 
it  shall  pass;  because,  as  it  is  said,  it  must  be  taken  that  his  in- 
tent was  to  purchase  it,  and  were  it  not  to  pass  the  will  would 
be  void.  All  this  was  repudiated  by  Lord  Holt  in  Bunker  v. 
Cook,  11  Mod.  278,  as  being  not  even  the  dictum  of  a judge, 
but  an  assertion  of  counsel  and  unwarranted  by  the  book  cited 
for  it;  in  which  he  is  supported  by  Chief  Justice  Treby  in 
Archer  v.  Bokenham,  11  Mod.  163.  In  truth  the  matter 
never  depended  on  the  actual  intent;  nor  yet,  as  it  was  at  one 
time  supposed,  on  the  restrictive  words  of  the  English  statutes, 
and  it  is  therefore  of  no  importance  to  the  question  that  those 
statutes  were  not  reported  as  in  force  here.  It  is  true  that  in 
Butler  and  Baker’s  case,  Lord  Coke  laid  great  stress  on  those 
words;  but  in  Bunker  v.  Cook,  or  Broncker  v.  Coke,  as  it  is 
reported  in  Holt’s  Rep.  247,  it  was  assserted  by  Lord  Holt 
that  Chief  Justice  Bridgeman  had  differed  from  Lord  Coke  in 
attaching  importance  to  those  words,  in  a case  determined  in 
the  Common  Pleas  the  16  Car.  2.  and  that  the  judges  in  the 
Exchequer  Chamber  were  of  the  same  opinion:  this  too  on 
the  relation  of  Chief  Justice  Bridgeman  himself.  But  what 
puts  the  matter  at  rest  is,  that  in  this  case  of  Bunker  v.  Cook, 
the  rule  was  applied  in  all  its  rigour  to  lands  which  were  de- 
visable, not  by  force  of  the  statute  at  all,  but  by  custom  ; and 
the  judgment  was  affirmed  in  the  House  of  Lords.  The  doc- 
trine was  vigorously  maintained  in  that  case  as  well  as  in  Buck- 
enham  v.  Cook  (Holt’s  Rep.  248)  by  Lord  Holt;  and  in  Archer 
v.  Bokenham,  by  Chief  Justice  Treby;  who  together  rested  it 


( 19  ) 

on  these  propositions:  That  a will  is  a species  of  conveyance, 
not  strictly  subject  to  the  rules  of  conveyances  at  the  common 
law,  it  is  true,  the  vesting  of  the  estate  being  postponed  till 
the  death  of  the  testator;  yet  operating,  as  regards  his  dis- 
posing power  and  capacity,  by  relation  to  the  making  of  it, 
insomuch  as  to  require  his  power  over  the  estate  to  be  perfect 
at  the  time,  just  as  his  capacity  must  be  perfect  at  the  time,  it 
being  settled  that  the  want  of  a disposing  mind  and  memory 
at  the  performance  of  the  act  of  disposition,  is  not  supplied  by 
the  restoration  of  it  before  the  death,  for  the  same  reason  that 
an  intervening  loss  of  it  will  not  prejudice  a disposition  unex- 
ceptionable at  the  time — in  other  words,  that  the  act  of  dispo- 
sition must  be  complete  in  every  respect  at  the  performance  of 
it:  That  a testator,  like  any  other  grantor,  can  not  give  what 
he  has  not;  and  that  the  same  principle  prevails  in  convey- 
ances to  uses  though  construed  liberally  like  wills,  to  favour 
the  intention,  as  in  Yelverton  v.  Yelverton,  Cro.  Eliz.  401, 
where  a father  covenanted  to  stand  seised  of  land  which  he 
should  purchase:  That  the  form  of  pleading  a devise,  the  tes- 
tator always  being  described  as  seised  at  the  time  of  making 
his  will,  is  strong  though  not  conclusive  evidence  of  the  ne- 
cessity that  he  should  be  so  in  fact:  That  the  reason  why  land 
differs  in  this  respect  from  personal  estate,  is  that  the  common 
law  has  provided  in  the  event  of  intestacy,  a fixed  successor 
to  the  one  and  not  to  the  other,  even  the  statute  of  distribu- 
tion being  but  a direction  to  the  executor  how  to  administer 
the  assets ; by  reason  of  which,  and  the  fluctuating  nature  of 
personal  estate,  which  is  changing  every  day,  a different  rule 
would  require  a new  will  to  be  made  every  day:  That  a sub- 
sequent purchase  giving  the  land  to  the  testator,  is  repugnant 
to  the  import  of  the  devise  which  would  give  it  to  the  devisee; 
and  therefore  not  to  be  intended  to  have  been  made  in  subser- 
vience to  the  object  of  the  will:  And  finally,  that  there  is  no 
case  or  authority  to  warrant  the  opposite  doctrine.  To  the 
argument  of  such  men  as  these,  it  would  be  presumptuous  in 
me  to  attempt  an  addition,  and  I therefore  refer  the  student  to 
their  reasons  as  stated  in  the  report.  The  alleged  dependence, 


( 20  ) 

then,  of  the  doctrine  on  the  restrictive  words  of  the  British 
statutes  being  disposed  of,  it  results  that  the  question  stands 
here  exactly  as  it  did  in  England,  unless  the  specific  provi- 
sions of  our  own  statute  be  thought  to  make  a difference. 

The  clause  which  has  been  supposed  to  make  this  differ- 
ence, is  in  the  first  section.  After  requiring  proof  by  two  wit- 
nesses, and  establishing  a mode  for  its  authentication,  it  is  de- 
clared that  wills  so  proved,  6 shall  be  good  and  available  in 
law  for  the  granting,  conveying,  and  assuring,  of  the  lands  or 
hereditaments  thereby  given  or  devised,  as  well  as  of  the  goods 
and  chattels  thereby  bequeathed;’  and  from  the  parity  of  pro- 
vision thus  expressed  is  inferred  an  intention  to  create  a parity 
of  operation  and  effect.  That  such  was  not  the  object,  seems 
manifest  from  the  legislation  which  preceded  it.  By  the  fif- 
teenth law  agreed  upon  in  England,  it  was  declared  that  c all 
wills  and  writings  attested  by  two  witnesses,  shall  be  of  the 
same  force  as  to  lands  as  other  conveyances,  being  legally 
proved  within  forty  days,  either  within  or  without  the  said 
province.’  This  was  evidently  designed  to  preclude  that  pro- 
vision of  the  statute  of  frauds  which  requires  three  witnesses, 
and  is  worthy  of  special  notice  beside,  not  only  for  treating 
wills  of  land  as  conveyances,  but  for  putting  them  on  the  foot- 
ing, as  to  proof,  of  testaments  of  chattels,  which,  by  the  Ca- 
non, and  consequently  by  the  English  law,  require  but  two. 
Lea  v.  Libb,  3 Salk.  396.  This  fundamental  law  received  a 
regular  statutory  form  from  the  first  Assembly,  convened  at 
Upland  in  1682,  by  whom  it  was  enacted  as  the  forty -fifth 
section  of  the  Great  Law,  and  in  the  terms  in  which  it  had 
been  expressed  in  England,  with  the  exception  of  two  imma- 
terial words  introduced,  the  last  of  them  evidently  by  inad- 
vertence. Chief  Justice  Kinsey’s  note  in  the  margin  is:  ‘This 
Act  as  amended  in  the  fourth  of  Queen  Anne,  remains  to  this 
day.’  Prov.  Laws,  App.  7.  Now  the  fourth  of  Queen  Anne, 
which  he  pronounces  but  an  amendment,  is  the  very  act  un- 
der consideration;  and  it  seems  clear  therefore  that  he  con- 
sidered the  act  of  1682,  as  the  law  of  his  day,  except  so  far  as 
it  was  amended  by  the  Act  of  1705.  His  notes  were  written 


( 21  ) 

certainly  after  1713,  as  they  contain  a reference  to  acts  passed 
in  the  close  of  that  year,  and  probably  after  1730,  when  he 
removed  from  New  Jersey  to  Pennsylvania.  He  was  appoint- 
ed Chief  Justice  about  the  year  1743,  and  died  in  that  office, 
according  to  Proud,  in  1750.  The  Act  of  1682,  however,  was 
amended  only  as  to  the  time  of  proof  and  the  manner  of 
authenticating  it,  the  requisition  of  two  witnesses  being  pre- 
served. But  this  is  not  all.  An  Act  had  been  passed  at  New 
Castle  in  1700,  (Append,  to  Prov.  Laws,  7.)  which  expressly 
following  the  analogy  of  conveyances  as  to  the  effect  of  the  in- 
strument, required  no  more  than  legal  proof  without  specify- 
ing the  number  of  the  witnesses.  It  therefore  had,  or  might  be 
supposed  to  have,  the  effect  of  putting  wills  of  lands  upon  a 
lower  footing  as  to  proof  than  wills  of  chattels,  about  which  it 
said  nothing,  and  consequently  left  them  on  the  footing  of  the 
general  law.  To  say  the  least,  it  was  open  to  an  argument  that 
one  witness  was  sufficient  for  a will  of  land  as  in  the  case  of 
any  other  conveyance  of  land.  This  Act  having  been  repealed 
by  the  Queen  in  Council,  as  may  be  seen  in  Weis  and  Mil- 
ler’s edition  of  the  laws,  page  18,  our  present  act  was  passed 
in  the  same  year,  and  the  requisition  of  proof  by  two  witnesses 
restored,  with  new  provisions  added  as  to  the  mode  of  authen- 
ticating it;  and  thus  the  reduction  in  the  quantity  of  proof 
made  by  the  Act  of  1700,  was  taken  away,  and  wills  of  land 
were  again  put,  as  to  proof,  on  the  footing  of  testaments  of 
chattels.  It  is  needless  to  ask  why.  It  was  an  express  condi- 
tion of  the  charter  that  the  laws  for  the  regulation  of  property 
. should  conform,  as  nearly  as  might  be,  to  the  laws  of  England, 
till  altered  by  the  provincial  legislature;  and  the  same  jealousy 
of  innovation  which  prompted  the  crown  to  repeal  the  act  for 
the  abolition  of  survivorship  between  joint  tenants,  passed  in 
1700,  as  well  as  the  two  acts  for  barring  entails  by  a deed  ac- 
knowledged and  recorded — the  one  passed  in  1705,  and  the 
other  in  1710,  (Hall  and  Sellers’s  edition  of  the  laws,  Append. 
18,  19.) — might,  on  a question  of  further  departure  from  the 
statute  of  frauds,  induce  it  to  stickle  about  a witness  more  or 
less.  The  clause  in  our  statute  of  wills,  to  which  I have  par- 


( 22  ) 

licularly  adverted,  seems  therefore  to  have  reference  to  the 
proof  and  not  the  effect  of  the  instrument.  The  first  was  all 
that  was  in  contest  between  the  province  and  the  crown.  The 
fifteenth  law  agreed  upon  in  England,  or  rather  the  Act  of 
1682,  remained  in  force  twenty-three  years  without  opposi- 
tion; and  during  that  time,  wills  of  lands  and  testaments  of 
chattels  stood  on  the  same  footing.  But  no  sooner  did  the  act 
of  1700  reduce  the  proof  of  the  former,  or  bring  it  into  doubt, 
than  it  was  repealed  by  the  Privy  Council;  and  when  the  pre- 
sent act  of  1705  raised  it  again  to  the  level  of  the  act  of  1682, 
the  crown  acquiesced.  At  no  time  does  there  appear  to  have 
been  a disposition  to  change  the  effect  of  a will  of  lands  as  un- 
derstood in  England  ; indeed  the  very  suspicion  that  such  a 
design  was  harboured  would  have  defeated  it.  On  the  con- 
trary, the  language  of  all  our  laws  is  incomparably  more  em- 
phatic than  that  of  any  Act  of  Parliament,  to  show  that  a will 
of  lands  was  esteemed  a conveyance  and  no  more.  This  sketch 
of  the  legislation  which  preceded  the  act  of  1705,  and  which 
is  here  given  in  the  order  and  nearly  in  the  words  of  a dis- 
tinguished counsel,  to  whose  research  I am  indebted  for  it, 
seems  to  put  the  intention  of  the  legislature  beyond  the 
reach  of  doubt.  The  magnitude  of  the  interest  in  contest, 
amounting  as  it  does  in  value  to  more  than  sixty  thousand  dol- 
lars, as  well  as  a respect  for  the  doubt  suggested  by  my  brother 
Huston,  has  induced  me  to  examine  the  foundations  of  this 
part  of  our  lawr  with  peculiar  care;  and  the  result  is  a firm  con- 
viction, that  the  real  estate  acquired  subsequently  to  the  two 
codicils,  did  not  pass  by  Mr.  Girard’s  will:  consequently  the 
plaintiffs  are  entitled  to  the  succession  under  the  intestate 
laws. 


Judgment  for  the  plaintiffs  accordingly. 

On  the  9th  April  1833,  the  Board  of  Commissioners  of  the 
Girard  Estate,  “ directed  the  Treasurer  to  settle  the  account 
of  the  intestate  property , with  the  next  of  kin  of  Mr.  Gi- 
rard, and  pay  over  to  them  the  balance  in  his  hands , on  ac- 


( 23  ) 

count  of  that  estate . Instructions  were  also  given  to  the 
agents  to  deliver  to  them  possession  of  said property 

On  Tuesday  the  9th  of  July,  1833,  the  following  communi- 
cation appeared  in  the  American  Sentinel : 

<£  Remarks  upon  the  decision  of  the  Supreme  Court  of  Penn- 
sylvania in  the  suits  brought  by  the  heirs  at  law  of  the  late 
Stephen  Girard,  against  6 the  Mayor,  Aldermen  and  Citizens 
of  Philadelphia.5 

Stephen  Girard  died  on  the  26th  December,  1831,  having 
made  his  Will,  dated  the  16th  February,  1830,  and  two  codi- 
cils thereto,  dated  the  25th  December,  1830,  and  the  20th 
June,  1831. 

After  the  execution  of  the  last  codicil,  he  purchased  cer- 
tain real  estate,  situate  in  the  city  and  county  of  Philadelphia, 
and  the  county  of  Schuylkill,  for  which  he  paid  the  sum  of 
$ 66,418  55  ; one  of  the  estates  being  in  addition,  subject  to  a 
mortgage  of  $21,000. 

The  heirs  at  law  of  Stephen  Girard,  claimed  the  whole  of 
this  after  acquired  real  estate,  upon  the  ground,  that  it  did  not 
pass  by  the  Will  or  codicils,  and  that  as  to  this  property,  he 
had  died  intestate. 

Amicable  actions  of  ejectment  were  instituted,  in  the  Su- 
preme Court  for  the  Eastern  District  of  Pennsylvania,  by  the 
heirs  at  law  against  ‘ the  Mayor,  Aldermen  and  Citizens  of 
Philadelphia5  to  July,  1832,  for  the  recovery  of  the  lands, 
lots,  &c.,  situate  in  the  city  and  county  of  Philadelphia,  pur- 
chased by  the  Testator  after  the  20th  June,  1831. 

Cases  were  stated  for  the  opinion  of  the  court  and  argued, 
and  on  the  29th  March,  1833,  judgments  were  entered  in  all 
the  suits,  in  favour  of  the  plaintiffs. 

Upon  examining  the  respective  cases,  and  the  opinion  of 
the  court  delivered  by  Chief  Justice  Gibson,  it  will  be  found, 
that  only  one  single  naked  question  of  law,  was  argued  by 
counsel,  or  decided  by  the  court ; and  that  was,  whether  real 
estate  purchased  subsequently  to  the  date  of  his  Will  by  a tes- 
tator, passed  by  that  instrument. 


( 24  ) 

All  other  questions  relative  to  the  title  of  the  heirs  to  this 
real  estate,  were  thus  left  open  for  future  discussion  and  deci- 
sion ; and  it  appears  to  me  that  there  is  one  very  material  point 
which  demands  a candid  and  dispassionate  examination,  and 
an  ultimate  decision  by  our  highest  judicial  tribunal. 

In  his  Will,  the  Testator  uses  the  following  language: 
6 Now  I do  give,  devise,  and  bequeath,  all  the  residue  and  re- 
mainder of  my  real  and  personal  estate , of  every  sort  and 
kind,  wheresoever  situate,  (the  real  estate  in  Pennsylvania 
charged  as  aforesaid)  unto  6 the  Mayor,  Aldermen  and  Citi- 
zens of  Philadelphia,’  their  successors  and  assigns,  in  trust  to 
and  for  the  several  uses,  intents  and  purposes  hereinafter  men- 
tioned and  declared  of  and  concerning  the  same,  that  is  to  say  : 
So  far  as  regards  my  real  estate  in  Pennsylvania,  in  trust, 
that  no  part  thereof  shall  ever  be  sold  or  alienated  by  the  said 
the  Mayor,  Aldermen  and  Citizens  of  Philadelphia,  or  their 
successors,’  &c. 

In  the  first  codicil,  dated  the  25th  December,  1830,  he  says: 
6 Whereas  I,  Stephen  Girard,  the  testator  named  in  the  fore- 
going will  and  testament,  dated  the  sixteenth  day  of  Febru- 
ary, eighteen  hundred  and  thirty,  have,  since  the  execution 
thereof,  purchased  several  parcels  and  pieces  of  real  estate,  and 
have  built  sundry  messuages,  all  which,  as  well  as  any  real 
estate  that  I may  hereafter  purchase , it  is  my  wish  and  in- 
tention to  pass  by  the  said  Will:  Now  I do  hereby  repub- 
lish the  foregoing  last  will  and  testament,  dated  February  16, 
1830,  and  do  confirm  the  same  in  all  particulars.’ 

In  his  second  and  last  codicil,  dated  the  20th  June,  1831, 
he  says:  6 Whereas  I,  Stephen  Girard,  the  testator  named  in 
the  foregoing  will  and  testament,  dated  February  16,  1830, 
have,  since  the  execution  thereof,  purchased  several  parcels 
and  pieces  of  land  and  real  estate,  all  which,  as  well  as  any 
real  estate  that  I may  hereafter  purchase,  it  is  my  intention 
to  pass  by  said  Will.9 

Then  follows  a particular  direction  with  regard  to  Peel 
Hall,  and  the  lot  at  the  corner  of  Twelfth  and  Market  streets ; 
and  the  attestation  is  in  these  words : 6 Signed,  sealed,  pub- 


( 25  ) 

lished,  and  declared,  by  the  said  Stephen  Girard,  as  and  for  a 
republication  of  his  last  will  and  testament,  and  a further  di- 
rection in  relation  to  the  real  estate  therein  mentioned,  in  the 
presence  of  us,  &c.’ 

From  the  language  of  the  will  and  codicils,  there  can  be 
no  doubt  that  the  Testator  intended  to  include  all  after  pur- 
chased real  estate,  in  the  residue  devised  to  4 the  Mayor,  Al- 
dermen, and  Citizens  of  Philadelphia;’  and  it  is  also  perfectly 
clear,  that  he  has  used  all  the  words  necessary  to  effectuate 
such  an  intention,  so  far  as  laid  in  his  power. 

If  the  heirs  claiming  this  after  purchased  real  estate,  took 
no  benefits  under  the  Will,  then  the  decision  of  the  Supreme 
Court  would  rule  the  whole  case;  but  as  all  the  heirs  at  law  of 
Mr.  Girard,  have  legacies  given  to  them  by  his  Will,  amount- 
ing in  the  whole  to  $ 90,000,  exclusive  of  a devise  of  a house 
and  lot  of  ground  situate  near  the  city  of  Bordeaux,  in  France, 
to  two  of  them,  the  question  naturally  arises — can  they  4 claim 
under , and  in  opposition  to  the  same  instrument ?’ 

This  involves  the  doctrine  of  election,  a well  known  and 
familiar  branch  of  the  law. 

This  doctrine  is  very  clearly  explained  by  Lord  Chancel- 
lor Erskine,  in  his  judgment  in  the  case  of  Thellusson  v.  Wood- 
ford, 13  Vesey  Junior,  220,  221.  4 The  jurisdiction,’  says 

Lord  Erskine,  4 exercised  by  this  court,  compelling  election, 
may  be  thus  described  : A person  shall  not  claim  an  interest 
under  an  instrument,  without  giving  full  effect  to  that  instru- 
ment, as  far  as  he  can.  If,  therefore,  a testator,  intending  to 
dispose  of  his  property,  and  making  all  his  arrangements  under 
the  impression  that  he  has  the  power  to  dispose  of  all  that  is 
the  subject  of  his  will,  mixes  in  his  disposition  property  that 
belongs  to  another  person,  or  property  as  to  which  another 
person  has  a right,  to  defeat  his  disposition,  giving  to  that  per- 
son an  interest  by  his  will,  that  person  shall  not  he  permit- 
ted to  defeat  the  disposition  where  it  is  in  his  power , and 
yet  take  under  the  will.  The  reason  is  the  implied  condition, 
that  he  shall  not  take  both ; and  the  consequence  follows  that 
there  must  be  an  election ; for  though  the  mistake  of  the  tes- 

D 


( 26  ) 

tator  cannot  affect  the  property  of  another  person,  yet  that 
person  shall  not  take  the  testator’s  property  unless  in  the  man- 
ner intended  by  the  testator.’ 

To  illustrate  and  confirm  this  position,  I would  briefly  re- 
fer to  this  case  of  Thellusson  v.  Woodford,  and  to  the  very 
late  case  of  Churchman  v.  Ireland,  reported  1 Russell  and 
Mylne,  250,  and  decided  by  the  present  distinguished  Lord 
Chancellor  of  England,  on  the  20th  December,  1831. 

Peter  Thellusson,  by  his  celebrated  will,  directed  that  in 
case  he  should  in  his  lifetime,  enter  into  contracts  for  the  pur- 
chase of  lands,  and  die  before  the  conveyance,  such  contracts 
should  be  carried  into  execution,  and  the  money  paid  out  of 
his  personal  estate,  and  the  conveyances  to  be  made  to  his  trus- 
tees, their  heirs,  &c.,  to  the  uses  of  his  will. 

The  testator,  within  a month  before  his  death,  had  contract- 
ed for  the  purchase  of  real  estate  to  the  amount  of  £ 30,000. 

His  son  and  heir  at  law,  to  whom  certain  interests  were 
bequeathed  by  the  will,  upon  bill  filed  in  the  Court  of  Chan- 
cery, was  called  upon  to  make  his  election  between  the  real 
estate,  so  descended  to  him,  and  the  interests  given  him  by 
the  will. 

Lord  Erskine  said,  4 Mr.  Thellusson’s  heir  takes  these  es- 
tates, as  if  his  father  had  not  made  a will ; but  my  opinion 
is  that  he  cannot  also  take  what  is  given  him  by  the  will . 
He  7nust  therefore  elect .’ 

The  case  of  Churchman  v.  Ireland,  was  this — Thomas  Ire- 
land, by  his  will,  devised  and  bequeathed  ‘ all  and  singular 
my  estate  and  effects  whatsoever  and  wheresoever,  and  of  what 
nature  or  kind  soever,  both  real  and  personal,  which  I shall 
die  possessed  of,  interested  in,  or  entitled  unto’ — to  trustees 
upon  trust  amongst  other  things  to  sell  and  dispose  of  the  same, 
and  to  distribute  one-third  part  of  the  moneys  arising  from 
such  sale,  among  all  the  children  of  his  son. 

After  the  date  of  his  will,  the  testator  purchased  a field, 
adjoining  his  other  estate,  and  died  leaving  the  eldest  son  of 
his  said  son,  (who  died  in  the  testator’s  lifetime)  his  heir  at 
law. 


( 27  ) 

A bill  was  filed  praying  that  the  heir  at  law,  who  was  one 
of  the  legatees,  might  be  put  to  his  election. 

Lord  Brougham  decided  first  that  the  words  used  by  the 
testator  included  the  after  purchased  property,  and  secondly, 
that  the  will  raised  ‘a  case  of  implied  condition,  and  that  the 
heir  was  bound  to  elect.’ 

The  heirs  at  law,  therefore,  of  Stephen  Girard,  were 
bound  to  elect  between  the  interests  given  to  them  by  his 
will,  and  the  after  acquired  real  estate,  and  were  never  en- 
titled at  the  same  time  to  receive  the  one,  and  to  hold  the 
other.* 

They  have  received  their  legacies,  and  if  they  have  thus 
made  their  election  to  take  under  the  will,  and  are  deter- 
mined to  abide  by  it,  this  after  purchased  real  estate  is  a part 
of  the  residue  of  the  estate  of  the  testator,  and  passes  to  ‘ the 
Mayor,  Aldermen  and  Citizens  of  Philadelphia,’  subject  to 
the  trusts  declared  by  him. 

Supposing  it  not  too  late  for  the  heirs  to  retract  the  choice 
made  by  them,  and  that  they  should  elect  to  take  the  land, 
then  they  must  repay  their  legacies  to  the  executors,  who  will 
pay  the  same  over  to  the  city  as  forming  a part  of  the  residu- 
ary personal  estate  of  the  testator. 

Every  citizen  of  Philadelphia  is  interested  in  this  question. 

R.” 

* The  whole  doctrine  of  election  is  thus  distinctly  stated  in  the  very  learned 
treatise  of  Mr.  Chitty,  on  “The  practice  of  the  Law  in  all  its  Departments,” 
lately  published  in  London,  volume  1,  part  1,  page  357 : 

“ And  notwithstanding  this  rule  at  law,  that  q/ifer-purchased  real  property 
will  not  pass,  it  will  frequently  be  otherwise  in  equity , when  the  testator’s  in- 
tention to  the  contrary  must  be  collected  from  the  terms  of  the  will,  and  the 
heir  would  take  advantage  of  the  testator’s  neglect  to  republish  his  will  after 
his  purchase,  and  yet  attempt  to  take  any  benefit  under  the  terms  of  the  will  ? 
and  therefore,  a devise  and  bequest  by  a testator,  of  ‘all  my  estate  and  effects 
both  real  and  personal  which  I shall  die  possessed  o/,’  was  held  in  equity  to 
extend  to  lands  purchased  after  the  date  of  his  will ; and  it  was  held  that  the 
heir  taking  benefits  under  the  will,  must  elect  either  to  give  up  his  claim  to 
such  lands,  or  to  give  up  his  share  of  any  benefit  under  the  will.” 

In  Pennsylvania  “ there  is  no  Court  of  Chancery.  The  Judges  here  are, 
therefore,  to  determine  causes  according  to  equity  as  well  as  the  positive  law ; 
equity  being  a part  of  the  law.”  Pollard  v.  Shaffer,  1 Dallas  213. 


( 28  ) 

On  the  22d  July,  1833,  the  following  communication  was 
published  in  the  same  paper: 

u Girard’s  Will. — A communication  published  in  the  Senti- 
nel on  the  9th  inst.  over  the  signature  “ R.”  and  remarking 
upon  the  argument  in  the  Supreme  Court  upon  the  subject  of 
the  after  purchased  lands,  contains  this  paragraph. 

‘ Upon  examining  the  respective  cases  and  the  opinion  of 
the  Court  delivered  by  Chief  Justice  Gibson,  it  will  be  found, 
that  only  one  single  naked  question  of  law  was  argued  by  counsel 
or  decided  by  the  court;  and  that  was,  whether  real  estate  pur- 
chased subsequently  to  the  date  of  his  will  by  the  testator 
passed  by  that  instrument/ 

The  conclusion  drawn  by  the  writer  from  the  sources  to 
which  he  referred  for  information,  is  in  one  feature,  incorrect 
in  point  of  fact . 

The  question  which  he  has  discussed  in  the  communication 
was  distinctly  raised  by  the  counsel  for  the  city,  and  present- 
ed to  the  consideration  of  the  court.  The  counsel  did  contend 
that  the  doctrine  of  4 election5  applied  to  the  claim  of  the 
heirs  at  law  of  Stephen  Girard — and  that  they  must  be  put  to 
their  choice  between  the  legacies,  or  the  real  estate  of  which 
the  said  Mr.  Girard  had  died  intestate. — That  they  should  be 
put  to  their  election  before  they  could  be  permitted  to  re- 
cover. 

The  case  of  Thellusson  v.  Woodford,  referred  to  by  R.,  was 
cited  to  the  court  and  urged  in  the  argument — and  when  it 
was  objected  that  this  case  was  subsequent  to  the  revolution, 
the  elementary  books  giving  an  abstract  were  presented.  Sug- 
den  on  Vendors,  page  138,  Sugden  on  Powers,  page  380, 
where  the  whole  doctrine  is  examined:  3d  Johns.  Chan.  Rep. 
553;  17th  Sergeant  & Rawle,  24;  1 Swanst.  Ch.  Rep.  425; 
2d  Vernon,  581  and  176,  were  cited  in  addition  to  the  cases 
mentioned  by  R. 

The  point  therefore  was  put  to  the  court  and  argued  by  the 
counsel. 


( 29  ) 

It  may  be,  that  the  court  thought  that  the  case  stated  did  not 
bring  up  the  point.  That  case  was  prepared  and  signed  in  Oc- 
tober, 1832  : the  counsel  who  argued  it  were  employed  in 
March,  1833.  They  were  confined  to  the  case  as  stated — 
they  believed  that  it  might  let  them  into  the  question — and 
therefore  made  the  argument. 

What  opinion  the  court  entertained  about  it  does  not  ap- 
pear. They  did  not  deliver  an  opinion  from  the  bench.  The 
opinion  of  the  Chief  Justice  has  been  sent  to  the  reporter  since 
the  adjournment  of  that  court — and  though  the  result  was  pre- 
viously known  and  announced,  the  course  of  reasoning  which 
led  to  it  was  not  known;  nor  can  it  he  ascertained  certainly 
until  the  court  shall  again  sit  in  bank,  whether  they  did  or  did 
not  regard  the  question  of  election  as  arising  under  that  case — 
as  they  do  not  indicate  any  sentiment  upon  the  subject.  It  is 
believed,  however,  the  latter  was  their  opinion — and  if  so,  the 
question  is  still  an  open  one. 

K.” 

And  on  the  25th  of  July,  1833,  the  following  communica- 
tion appeared  in  the  same  paper: 

“ In  your  paper  of  the  9th  inst.  a communication  was  pub- 
lished over  the  signature  ‘ R, 5 entitled,  6 Remarks  upon  the 
decision  of  the  Supreme  Court  of  Pennsylvania,  in  the  suits 
brought  by  the  heirs  at  law  of  the  late  Stephen  Girard  against 
the  Mayor,  Aldermen,  and  Citizens  of  Philadelphia.’  On 
Monday,  the  22d  instant,  another  communication  appeared 
over  the  signature  6 K,’  in  which,  after  quoting  a passage 
from  the  6 Remarks,’  it  is  said,  6 The  conclusion  drawn  by 
the  writer  from  the  sources  to  which  he  referred  for  informa- 
tion is  in  one  feature  incorrect  in  point  of  fact .’ 

The  passage  quoted  by  ‘ K’ is  as  follows:  4 Upon  examin- 
ing the  respective  cases  and  the  opinion  of  the  court  delivered 
by  Chief  Justice  Gibson,  it  will  be  found,  that  only  one  single 
naked  question  of  law  was  argued  by  counsel,  or  decided  by 
the  court:  and  that  was,  whether  real  estate  purchased  subse- 


( 30  ) 

quently  to  the  date  of  his  will,  by  a testator,  passed  by  that 
instrument.’ 

From  the  statement  made  by  ( K,’  it  does  appear,  that  the 
question  of  election  was  argued  by  the  counsel  for  the  city,  and 
that  is  presumed  to  be  the  only  feature  in  which  the  passage  just 
quoted  was  incorrect  in  point  of  fact.  The  writer  of  6 R’  was 
not  present  at  the  argument,  nor  did  he  hear  that  the  question 
of  election  was  argued,  (and  he  is  happy  to  be  corrected  on 
this  point,)  but  it  was  the  unquestionable  understanding  of  the 
bar  that  only  the  one  question  was  decided  by  the  court,  and 
this  will  be  confirmed  by  a perusal  of  the  cases  stated,  and  the 
opinion  of  the  court,  which  does  not  even  allude  to  any  other 
point. 

As  6 R’  does  not  entirely  agree  with  ‘ K’  in  some  of  his  con- 
clusions, a few  remarks  may  explain  the  difference  between 
their  views  of  a point  so  important  to  the  citizens  of  Philadel- 
phia, and  to  the  contemplated  Girard  College. 

On  the  8th  October,  1832,  amicable  actions  of  ejectment 
were  entered  in  the  Supreme  Court  of  Pennsylvania,  for  the 
Eastern  District,  by  the  heirs  at  law  of  Stephen  Girard,  against 
< the  Mayor,  Aldermen,  and  Citizens  of  Philadelphia,’  to  try 
the  title  to  the  real  estate  acquired  by  the  testator  subsequently 
to  the  date  of  his  will  and  codicils.  These  actions  included  the 
after  purchased  real  estate  in  the  city  and  county  of  Philadel- 
phia, excepting  of  course  a ground  rent  of  $ 25  60,  payable 
by  Philip  Smith.  No  action  of  ejectment,  it  is  believed,  was 
brought  for  the  ‘ lots  of  ground  in  Schuylkill  county,  near 
Mount  Carbon,  on  the  river  Schuylkill,  intended  for  land- 
ings,’ for  which  the  testator  paid  $4,500. 

The  cases  stated  in  these  amicable  actions  were  signed  by 
the  then  law  officer  of  the  corporation,  who  however  was  not 
concerned  in  the  argument.  The  present  very  respectable  city 
solicitor,  assisted  by  two  able  and  learned  counsel,  conducted 
the  argument  before  the  Supreme  Court. 

The  cases  were  ( stated  for  the  opinion  of  the  court  as  upon 
a special  verdict,’  and  contained  the  following  facts: 

That  Stephen  Girard  died  on  the  26th  December,  1831, 


t 

( 31  ) 

seised  in  fee  of  certain  real  estate  mentioned  in  the  agreement 
to  enter  the  action,  purchased  after  the  date  of  his  will  and 
codicils. 

That  his  will  and  codicils  were  duly  made  and  executed, 
and  were  proved  before  the  Register  of  Wills,  on  the  31st  of 
December,  1831,  which  will  and  codicils  were  to  be  consider- 
ed as  part  of  the  case. 

That  he  left  at  his  death  the  following  named  heirs  at  law, 
mentioning  their  names. 

That  the  defendants  are  in  possession  of  all  the  said  real 
estate,  and  that  the  deeds  of  the  said  property  are  to  be  con- 
sidered as  part  of  the  case.  ' 

And  then  the  question  was  submitted  for  the  decision  of  the 
court,  whether  said  real  estate,  or  any  part  thereof,  was  de- 
vised by  and  passed  under  the  said  will  and:  codicils  to  the  de- 
fendants, (the  Mayor,  Aldermen,  and  Citizens  of  Philadelphia,) 
or  not. 

‘ K’  says,  6 the  counsel  did  contend,  that  the  doctrine  of 
6 election’  applied  to  the  claim  of  the  heirs  at  law  of  Stephen 
Girard — and  that  they  must  be  put  to  their  choice  between  the 
legacies,  or  the  real  estate,  of  which  the  said  Mr.  Girard  had 
died  intestate — That  they  should  he  put  to  their  election , be- 
fore they  could  he  permitted  to  recover .’ 

They  cited  Thellusson  v.  Woodford,  Sugden  on  Vendors, 
page  138,  (American  edition  of  1S20,)  Sugden  on  Powers, 
page  380,  (American  edition  of  1823,)  3 John.  Ch.  Rep.  553; 
17  Sergeant  & Rawle,  24;  1 Swanston  Ch.  Reports,  425,  (de- 
cided in  1818,)  2 Vernon,  581  and  176. 

The  case  of  Churchman  v.  Ireland,  1 Russell  & Mylne,  250, 
decided  on  the  20th  December,  1831,  is  a very  important  de- 
cision, as  it  shows  the  carrying  out  of  the  doctrine  of  election 
in  England,  to  its  full  extent,  and  overrules  the  case  of  Back 
v.  Kett,  1 Jacob,  534,  decided  in  1822,  by  Sir  Thomas  Plu- 
mer,  which  doubted  in  some  measure  the  doctrine  of  Lord 
Erskine  in  Thellusson  v.  Woodford. 

In  addition  to  the  cases  cited  from  our  own  reports  by  the 
counsel  for  the  city,  may  be  added  Adlum  v.  Yard,  1 Rawle 


( 32  ) 

171,  Heron  v.  Hoffner,  3 Rawle,  393,  396,  and  Allen  v. 
Getz,  2 Pennsylvania  Reports,  310,  322,  which  are  conclusive 
on  the  point,  that  the  doctrine  of  election  in  its  fullest  extent 
is  the  law  of  our  state. 

The  doctrine  pressed  by  the  counsel  for  the  city,  was  that 
the  heirs  < should  be  put  to  their  election , before  they  could 
be  permitted  to  recover .’  It  is  perhaps  not  necessary  to  ex- 
amine how  far  such  a question  could  be  made  on  the  facts  ap- 
pearing in  the  case  stated,  and  on  the  question  presented  for 
the  decision  of  the  court,  nor  in  what  manner  our  Supreme 
Court  would  exercise  the  powers  of  a Court  of  Chancery,  to 
compel  heirs  at  law  to  make  an  election  between  the  benefits 
given  them  by  the  will,  and  the  after  acquired  real  estate  de- 
scended to  them,  as  it  was  clear , that  the  heirs  had  elected 
to  take  under  the  will , for  they  had  demanded  and  had  re- 
ceived payment  of  their  legacies  from  the  Executors  of  Mr. 
Girard. 

If,  then,  it  had  been  inserted  in  the  cases  stated,  4 that  the 
above  named  heirs  at  law  are  the  same  legatees  mentioned  in 
the  will  of  the  testator,  and  that  the  said  legatees  did  on  the 
day  of  demand  and  receive  payment  of  their  re- 

spective legacies  from  the  executors  of  the  said  testator,  de- 
ducting the  Collateral  Inheritance  Tax,’  and  the  question  for 
the  decision  of  the  court  had  been  modified  accordingly,  then 
the  point  that  the  heirs  having  elected  to  take  under  the  will, 
cannot  take  the  after-purchased  real  estate,  contrary  to  the  ex- 
press intention  of  their  Testator,  would  have  been  distinctly 
raised,  and  must  have  been  decided  by  the  Supreme  Court. 

As  there  were  amicable  actions  instituted,  to  try  the  title 
of  the  parties  to  this  real  estate,  any  facts  necessary  to  raise  an 
important  question  of  law,  would,  according  to  the  usual  prac- 
tice, have  been  inserted  by  consent  in  the  cases  stated. 

If,  however,  the  defendants  had  refused,  the  court  would 
have  so  amended  the  cases,  as  to  meet  the  real  justice  of  the 
case,  or  if  the  facts  alleged  were  disputed,  would  have  had 
them  found  through  the  intervention  of  a jury. 

This,  however,  not  having  been  done,  the  Supreme  Court 


( 33  ) 

no  doubt  considered  themselves  bound  to  decide  only  the  naked 
question,  ‘ whether  real  estate  purchased  subsequently  to  the 
date  of  his  will  by  a Testator  passed  by  that  instrument/  and 
this  is  the  only  point  discussed  by  the  Chief  Justice,  and  de- 
cided by  the  court. 

The  reason  for  allowing  so  necessary  an  amendment  of 
the  case  for  the  defendants,  is  obvious,  and  always  weighs 
much  with  the  court  in  granting  new  trials.  For  ‘the  defend- 
ant in  the  first  ejectment  becomes  the  plaintiff  in  the  second, 
and  is  obliged  to  give  evidence  of  his  own  title,  instead  of 
merely  rebutting  the  claim  set  up  by  his  opponent ; and  as  this 
is  a point  of  material  consequence  to  him,  the  courts  rather 
lean  to  new  trials  on  behalf  of  defendants  in  ejectments,  espe- 
cially on  the  footing  of  surprise.7  2 Troubat  and  Haly’s  Prac- 
tice, 246. 

The  point,  therefore,  not  having  been  decided  by  th<8  Su- 
preme Court,  it  is  submitted  that  it  is  not  necessary  to  wait  to 
ascertain  that  fact  until  ‘ the* court  shall  again  sit  in  bank,7 
which  will  not  be  until  next  December. 

It  would  appear  ‘that  the  opinion  of  the  Chief  Justice  has 
been  sent  to  the  reporter  since  the  adjournment  of  that  court 
— and  though  the  result  was  previously  known  and  announced, 
the  course  of  reasoning  which  led  to  it  was  not  known7 — and 
yet  with  a strange  haste,  the  Board  of  Commissioners  of  the 
Girard  Estate,  on  the  9th  of  April  last,  ten  days  only  after  the 
result  was  known  and  announced,  delivered  possession  not 
only  of  the  real  estate  recovered  in  the  ejectments,  but  also  of 
the  landings  in  Schuylkill  county,  and  of  the  ground  rent  of 
$ 25  60,  and  paid  over  the  balance  in  hands  on  account  of  that 
estate. 

The  question  is  now  before  the  public,  and  it  must  be  de- 
cided by  our  highest  judicial  tribunal,  and  the  sooner  this  is 
done,  the  better  it  will  be  for  all  the  parties  interested  in  its 
event. 

R.77 

It  is  therefore  clear,  under  any  aspect,  whether  Stephen 

E 


( 34  ) 

Girard  died  with  or  without  “ heirs  or  any  known  kindred ,” 
that  those  claiming  as  heirs  at  law,  and  the  Commonwealth  of 
Pennsylvania,  having  elected  to  take  the  legacies  and  devises 
given  to  them  by  the  testator,  all  their  rights  in  the  after-pur- 
chased real  estate,  are  vested  in  “ the  Mayor,  Aldermen  and 
Citizens  of  Philadelphia,”  and  in  no  other  person  or  body  cor- 
porate : 

It  being  thus  ascertained,  that  the  real  estate  purchased  by 
Mr.  Girard,  after  the  date  of  his  will  and  codicils,  passes  as  a 
part  of  his  residuary  estate,  to  “ The  Mayor,  Aldermen,  and 
Citizens  of  Philadelphia,”  it  may  not  be  entirely  useless  to 
inquire  what  was  its  particular  destination,  by  our  venerable 
benefactor. 

This  real  estate  was  never  to  be  sold  or  alienated  by  the  said 
“ The  Mayor,  Aldermen,  and  Citizens  of  Philadelphia,  or 
their  successors,”  but  the  same  was  for  ever  to  “ be  let  from 
time  to  time  to  good  tenants  at  yearly  or  other  rents,”  &c.  and 
the  rents,  issues,  and  profits  of  the  same,  with  those  of  his 
other  roal  estate  in  Pennsylvania,  were  to  be  applied  to  keep- 
ing the  real  estate  of  the  city  and  liberties  of  Philadelphia  in 
repair,  and  improving  the  same,  and  “ the  nett  residue  (after 
paying  the  several  annuities  thereinbefore  provided  for)  ap- 
plied to  the  same  uses  as  are  therein  declared  of  and  concern- 
ing the  residue  of  his  personal  estate.” 

In  case  the  income  arising  from  the  remainder  of  the 
$2,000,000 — appointed  by  the  testator  to  the  Girard  College, 
should  prove  insufficient — “ then,”  he  says,  “such  further 
sum  as  may  be  necessary  for  the  construction  of  new  buildings, 
and  the  maintenance  and  education  of  such  further  number  of 
orphans  as  can  be  maintained  and  instructed  within  such  build- 
ings as  the  said  square  of  ground  shall  be  adequate  to,  shall  be 
taken  from  the  final  residuary  fund,  hereinafter  expressly  re- 
ferred to,  for  the  purpose,  comprehending  the  income  of  my 
real  estate  in  the  city  and  county  of  Philadelphia , and  the 
dividends  of  my  stock  in  the  Schuylkill  Navigation  Company.” 

In  the  24th  clause  of  his  will  the  testator  says,  “ But  if  the 
said  city  shall  knowingly  and  wilfully  violate  any  of  the  con- 


( 35  ) 

ditions  hereinbefore  and  hereinafter  mentioned,  then  I give 
and  bequeath  the  said  remainder  and  accumulations  to  the 
Commonwealth  of  Pennsylvania,  for  the  purposes  of  internal 
navigation:  excepting  however  the  rents , issues , and  profits 
of  my  real  estate  in  the  city  and  county  of  Philadelphia , 
which  shall  for  ever  he  reserved  and  applied  to  maintain  the 
aforesaid  College , in  the  manner  specified  in  the  last  para- 
graph of  the  2lst  clause  of  this  will. 9 

Mr.  Girard  then  declares,  that  all  the  bequests  and  devises 
of  the  residue  of  his  estate,  “ to  the  Mayor,  Aldermen,  and 
Citizens  of  Philadelphia,  are  made  upon  the  following  express 
conditions:  that  is  to  say:  First , that  none  of  the  monies , 
prmcipal , interest,  dividends , or  rents  arising  from  the  said 
residuary  devise  and  bequest , shall  at  any  time  he  applied 
to  any  other  purpose  or  purposes  whatever , than  those  herein 
mentioned  and  appointed 

From  these  provisions,  it  is  evident,  that  the  whole  of 
this  real  estate , situate  in  the  city  and  county  of  Philadelphia, 
forms  a component  part  of  the  Girard  College  Fund,  and  is  the 
property  in  fact  of  the  “ poor  white  male  orphans,”  who  are  the 
primary  objects  of  the  testator’s  bounty,  and  that  under  no 
circumstances,  even  of  forfeiture  by  the  city,  can  it  be  divert- 
ed from  this  laudable  and  charitable  object. 


, 


">  '*  • 


UNIVERSITY  OF  ILLINOIS-URBANA 
KFP512  A545X1833  C001 

DECISION  IN  THE  EJECTMENTS  BROUGHT  BY  TH 


